Parvezkhan Pathan @ Athar Parvez S/O ... vs State Of Gujarat on 17 December, 2019

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Gujarat High Court

Parvezkhan Pathan @ Athar Parvez S/O ... vs State Of Gujarat on 17 December, 2019

Equivalent citations: AIRONLINE 2019 GUJ 757

Bench: Sonia Gokani

        R/SCR.A/10278/2019                                          ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CRIMINAL APPLICATION NO. 10278 of 2019

================================================================
 PARVEZKHAN PATHAN @ ATHAR PARVEZ S/O SIDDHI KHAN PATHAN
        THRO SULTANA PARVIN ATHARPARVEZ PATHAN
                         Versus
                   STATE OF GUJARAT
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Appearance:
MR HEMANT B RAVAL(3491) for the Applicant(s) No. 1
MR. R.C. KODEKAR, SPECIAL PP FOR C.B.I.
for the Respondent(s) No. 2,3
MS MAITHILI MEHTA, APP (2) for the Respondent(s) No. 1
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 CORAM: HONOURABLE MS JUSTICE SONIA GOKANI

                                 Date : 17/12/2019

                                  ORAL ORDER

1. The applicant has been convicted and sentenced to suffer rigorous imprisonment for life. He completed approximately 8 years of his sentence. His appeal also came to be decided by this Court in his favour. Later, the Apex Court in Criminal Appeal No. 150 of 2012 sentenced him for the life imprisonment, and accordingly, he presented himself before the jail authority in the month of July, 2019 and is in the jail since then.

2. On the ground that his niece is getting married and he is the only maternal uncle, he has approached this Court through his wife Sultana Page 1 of 7 Downloaded on : Thu Dec 19 00:18:02 IST 2019 R/SCR.A/10278/2019 ORDER Parvin Atharparvez Pathan to grant parole leave for 45 days. The marriage card / invitation card is also produced alogwith this application. The marriage is scheduled on 28.12.2019 at Tonk, Rajasthan and his brotherinlaw, who is father of niece - Mr. Abdus Salam Khan @ Bhaiyyu, is an advocate at Tonk, Rajasthan.

3. This Court had called for the reports from the police authorities and also from the C.B.I. The report received from C.B.I. is indicative that he has been involved in a murder case which is serious and also has been sentenced under the POTA Act. On the ground that it is a serious nature of crime he has committed by hatching criminal conspiracy, he does not deserve the concession or any release. The affidavit to that effect has also been filed.

4. The verification report in connection with the applicant has also been filed by the Sub Inspector of Police at SCI branch of CBI, who confirms that Mr. Atharparvez Siddikmohammad Pathan, the applicant is in the occupation of textile processing, contract labour and machine repairing. The statements of his family and other persons have also been recorded, wherein, it was stated that he is the only male member in his family and other persons are female. It is also Page 2 of 7 Downloaded on : Thu Dec 19 00:18:02 IST 2019 R/SCR.A/10278/2019 ORDER not in dispute that his niece is getting married and he is the only maternal uncle, however, on the ground that there are other male members available, who can make arrangement who will be visiting and attending marriage, his release has been objected to.

5. This Court has heard learned advocate Mr. Hemant Raval appearing for the applicant, who has ensured that no untoward incident is likely to happen. He is from the family of businessman and has continued to be the income tax payers prior the time, he has surrendered himself before the jail authority after the Supreme Court upheld the judgment and order of conviction and sentence of the Trial Court. It is also further his say that the applicantconvict being the only maternal uncle and the only male member in the family, his presence is a must. He fervently urged before this Court that his role is limited of hatching of the conspiracy and not of anything else. The coconvict, who has been involved and proved to be a shooter, also had been granted parole and furlough leave by the jail authority, who is the resident of Hyderabad. He, therefore, has urged that the Court may regard his case even with the strictest conditions.

6. Learned Special Public Prosecutor Mr. R.C. Kodekar representing the C.B.I. has objected Page 3 of 7 Downloaded on : Thu Dec 19 00:18:02 IST 2019 R/SCR.A/10278/2019 ORDER to the same on the grounds which have been stated in the report. He has not disputed the factum of other coconvicts having been granted parole as well as furlough leave. He however, has urged that the marriage since is at Tonk, Rajasthan, the C.B.I. has objection.

7. The learned Additional Public Prosecutor Ms. M.D. Mehta appearing for the respondent State has also along the line of the report of C.B.I. has objected.

8. On thus considering entire material and submissions, this Court at the outset, would profitably reproduce some of the vital findings and observations of the Apex Court rendered in the case of Asfaq v. State of Rajasthan and others reported in (2017) 15 SCC 55 , wherein the Court has made distinction between the parole and furlough leave and also setout the objective of grant of parole leave, in the following fashion:

"...amongst various grounds on which the parole can be granted, the most important ground, which stands out, is that a prisoner should be allowed to maintain family and social ties. For this purpose, he has to come out some time so that he is able to maintain his family and social contact. This reason finds justification in one of the objectives behind sentence and punishment, namely, reformation of the convict. The theory of Page 4 of 7 Downloaded on : Thu Dec 19 00:18:02 IST 2019 R/SCR.A/10278/2019 ORDER criminology, which is largely accepted, underlines that the main objectives which a State intends to achieve by punishing the culprit are:

deterrence, prevention, retribution and reformation. When we recognize reformation as one of the objectives, it provides justification for letting of even the life convicts for short periods, on parole, in order to afford opportunities to such convicts not only to solve their personal and family problems but also to maintain their links with the society. Another objective which this theory underlines is that even such convicts have right to breathe fresh air, albeit for (sic short) periods. These gestures on the part of the State, along with other measures, go a long way for redemption and rehabilitation of such prisoners. They are ultimately aimed for the good of the society and, therefore, are in public interest."

9. Considering this object and also humanizing factor coupled with need for allowing social links for the purpose of rehabilitation eventually as also bearing in mind socioeconomic placement of the petitioner before he surrendered in post conviction period after the Apex Court upheld the conviction and sentence, this Court is of the opinion that, as his presence is required, as he is the only maternal uncle to attend his Page 5 of 7 Downloaded on : Thu Dec 19 00:18:02 IST 2019 R/SCR.A/10278/2019 ORDER niece's marriage, his request deserves to be acceded to. This Court also has regarded the fact of other coconvicts having been granted parole and furlough with the identical nature of offence or may be even graver to certain extent proved against them.

10. Accordingly, this application is partly allowed and the applicant is ordered to be released on parole leave for the period of 10 (TEN) DAYS from the date of actual release and on his cash amount of Rs.20,000/, furnishing a bond of Rs.15,000/( Rupees Fifteen Thousand Only) with two sureties, one of whom shall be a relative and another will be an independent person, of the like amount to the satisfaction of the jail authority concerned and subject to the conditions that the applicant;

(a) shall not in any manner directly or indirectly make any inducement, threat or promise to any witness nor would act in contravention of prevalent law;

(b) shall at the time of execution of bond, furnish the full address of Tonk, Rajasthan to the Jail Superintendent by filing an affidavit and he shall also provide the mobile number of brotherin law at whose place the wedding is scheduled;

Page 6 of 7 Downloaded on : Thu Dec 19 00:18:02 IST 2019

R/SCR.A/10278/2019 ORDER

11. The C.B.I. shall be at liberty without disturbing the marriage occasion or without explicitly making it public, to intimate the nearby Police Station, of his visit at Tonk. That Police Station also shall not in any manner create any hurdle in the marriage ceremony, but merely shall be made aware of the order of this Court in case of any requirement of followup in future.

12. On completion of the parole leave, the applicant convict shall surrender before the jail authorities in time. Any default on the part of the applicant convict shall meet with a consequential order.

13. Applicant's return to the jail shall be intimated by the jail authority concerned to this Court by way of a communication. Any such communication received shall form part of this Courts record.

14. Office to send a copy of this order to the Superintendent of the concerned jail, FORTHWITH.

15. Rule is made absolute to the above extent.

Direct service tomorrow is also permitted.

(MS SONIA GOKANI, J) pradhyuman Page 7 of 7 Downloaded on : Thu Dec 19 00:18:02 IST 2019

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